Mendonca v Tonna [2020] NSWCA 224

Mendonca v Tonna [2020] NSWCA 224

The applicant did not show that a stay was required to preserve the subject matter of the litigation, that enforcement of the Equity Division orders would cause irreparable damage, that the Court of Appeal was likely to reopen its judgment on the basis of the new affidavit material, or that the application for special leave had substantial prospects of success. The orders concerning registration of interests and costs could be adjusted or set aside if the applicant later succeeded, and the proposed grounds largely turned on factual matters without any apparent issue of principle or public importance.

Jurisdiction
Australia
Judgment Date
21 September 2020
Procedural Posture
Application for Stay / Application in the Court of Appeal for a Stay of Orders of the Primary Judge Pending an Application to Reopen the Court of Appeal Judgment and an Application for Special Leave to Appeal to the High Court of Australia
Outcome
Application for a stay dismissed; applicant ordered to pay the costs of today.
Legal Topics
['stay of Orders' 'application to Reopen Judgment' 'special Leave to Appeal' 'resulting Trust' 'residential Tenancy Jurisdiction' 'costs']
['practice and Procedure'] ['stay of Orders' 'application to Reopen Judgment' 'special Leave to Appeal' 'resulting Trust' 'residential Tenancy Jurisdiction' 'costs']

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Procedural Posture

Application for Stay / Application in the Court of Appeal for a Stay of Orders of the Primary Judge Pending an Application to Reopen the Court of Appeal Judgment and an Application for Special Leave to Appeal to the High Court of Australia

Legal Issues

  1. 1 ["Whether orders of the primary judge should be stayed pending the applicant's application to reopen the Court of Appeal judgment dismissing her appeal." "Whether orders of the primary judge should be stayed pending the applicant's application for special leave to appeal to the High Court of Australia." 'Whether a stay was required to preserve the subject matter of the litigation.' 'Whether there was a substantial prospect that special leave to appeal would be granted.' 'Whether new affidavit evidence concerning the credibility of the first respondent warranted a stay.']

Ratio Decidendi

The applicant did not show that a stay was required to preserve the subject matter of the litigation, that enforcement of the Equity Division orders would cause irreparable damage, that the Court of Appeal was likely to reopen its judgment on the basis of the new affidavit material, or that the application for special leave had substantial prospects of success. The orders concerning registration of interests and costs could be adjusted or set aside if the applicant later succeeded, and the proposed grounds largely turned on factual matters without any apparent issue of principle or public importance.

Court Disposition

Application for a stay dismissed; applicant ordered to pay the costs of today.

Orders

  • ["Dismiss the application for a stay, being order (4) in the applicant's amended notice of motion filed on 4 September 2020." 'Order the applicant to pay the costs of today.']